A Bloodstained Legacy: Police Violence and the Fourth Amendment

Though, at just over fifty words, the Fourth Amendment itself is quite short, the protection it provides “against unreasonable searches and seizures” has given rise to a massive body of precedent, an esoteric area of constitutional jurisprudence comprising thousands of judicial opinions. In its important 1967 decision in Katz v. United States, the Supreme Court held that “the Fourth Amendment protects people, not places,” extending protection to a phone booth against the government’s argument that the booth itself was not physically penetrated. FBI agents had “attached an electronic listening and recording device” to the exterior of the booth, providing them with a recording that became the basis of an indictment charging Mr. Katz with the unlawful transmission of gambling information.

The Katz opinion, delivered by Justice Potter Stewart, rejected the idea that the proper legal question was whether the booth was “a constitutionally protected area,” instead addressing itself to whether the recording “violated the privacy upon which [Katz] justifiably relied.” The Court held that Katz’s expectation of privacy was violated, and thus that the Constitution required the FBI to obtain a warrant before conducting its surveillance. In other cases, the Court has held that the Fourth Amendment shields, for example, “an overnight guest in a home” and a hotel guest. Indeed, in its recent decision in City of Los Angeles v. Patel, the Court even invalidated a provision of the Los Angeles Municipal Code requiring hotel owners to maintain a record on its guests and to present that record to the LAPD on demand.

As we libertarians are wont to point out, the Fourth Amendment was quite explicitly a response to the Crown’s use of general warrants, warrants that grant their holders a carte blanche to search or arrest anyone, for any reason. With no specificity as to person or place and no reliance upon probable cause, the general warrant became a powerful weapon of the British government against the colonists. In a speech delivered in Massachusetts, in 1761, James Otis—a Harvard-trained attorney who defended John Hancock and John Faneuil—submitted an impassioned argument against the general warrant (or “writ of assistance”). The general warrant, Otis argued, “appears to me the worst instrument of arbitrary power, the most destructive of English liberty and the principles of law, that ever was found in an English law book.” Such warrants are the historical analog of star chamber courts, secret tribunals operated surreptitiously, hidden from public sight and servings the caprice of the crown rather than justice.

Whatever their faults, the Framers sought to deny the agents of the state an unlimited prerogative to root around in the personal belongings of private citizens. They associated general warrants with arbitrary, despotic power, the kind of power to which they fundamentally objected, the kind that derives from a system of privilege and inequality before the law. In a system governed by just laws, rather than the whims of men, all citizens can expect to be left in peace insofar as they leave others in peace, which means that officers of the law must generally ask an ostensibly neutral judicial body for a warrant before they arrest someone or conduct a search. Certainly narrow exceptions obtain, as they would in a free society, but we must be vigilant in demanding that these exceptions don’t swallow the rule.

Notwithstanding the robust safeguards generated by the Court’s Fourth Amendment cases, police officers continue to violate Americans’ rights with impunity, to disregard basic constitutional standards in favor of the violent, criminal behavior from which they are supposed to protect civil society. As Radley Balko observed earlier this year, “In the real world, the decisions that uphold Fourth Amendment rights often don’t matter.” Balko recounted the story of a young woman who quite correctly asserted that Customs and Border Patrol officers had no legal right to detain her or to open the trunk of her car. In a rather unsurprising turn, the woman’s insistence that the officers respect her constitutional rights prompted them to shoot her with a stun gun. Balko notes the “heightened contempt among cops for people who know and assert their rights,” a fact that, in turn, makes it more likely that one who is familiar with the contours of constitutional law will be met with police abuse. This is what free people are up against, cops who either don’t care about the requirements of the law or wrongly believe that it grants them nearly absolute power. This is a long way of saying that while knowing your rights is important, maintaining a healthy fear of the state’s armed thugs is perhaps far more important.

It is wise to be afraid and often prudent to obey—to understand the nature of power in a militarily occupied society, conditioned to be submissive, genuflecting meekly before glorified criminals. When it comes to the law, however, naively taking law enforcement’s word for it is unwise and perilous. Police officers are not lawyers and, regardless, are trained to ignore important and basic constitutional requirements. Further, the criminal courts are structured to permit their violations of the Bill of Rights, to turn a blind eye to illegal actions that serve the underlying goal of obtaining convictions. Indeed, given that most arrests and searches are probably illegal, marred by constitutional defects, the criminal justice system would fall to pieces without active complicity in regular, ongoing violations. And it is worth remarking upon that you don’t actually see police officers spouting their concocted and bogus theories of constitutional law in public forums; that’s because they know that such theories cannot be reconciled with actual law, that they’re made up after the fact in an attempt to justify blatant violations of people’s rights as citizens of the United States. In stark contrast, civil libertarians and criminal defense lawyers love going on the record with our views—because our views have a basis in the law and represent important constitutional ideas that are the foundation of our legal and civic tradition.

The authoritarians in American police departments don’t have good arguments, and they know it. Lucky for them, they don’t have to—they have the nearly unlimited power and resources of the state standing behind their brazen, illegal behavior, a fact that illustrates the important distinction between the demands of abstract legal theory and the realities of society’s deep power imbalances. None of this is to suggest that there are no good police officers. Many chose their occupation out of a genuine desire to serve and protect; these officers should take care not to embark on nonsensical apologies for the criminality of their brothers. Prosecutors, too, should heed their oaths to the Constitution with conscience and care, cultivating and promoting a culture of respect for the rights of individuals.

As for civil libertarians—be on your guard. Do not expect that an invocation of your constitutional rights will avail you, that principle will overcome power. The history of the state is the bloodstained story of the latter, a chronicle of violation and invasion whose legacy is not easily escaped.

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David D’Amato is an attorney, writer, and law professor.

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